Rajasthan High Court - Jodhpur
Bheraram And Ors vs State on 13 May, 2022
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 316/1997
Bheraram And Ors
----Appellant
Versus
State
----Respondent
For Appellant(s) : Mr. G.R. Punia, Sr. Advocate a/w
Mr. Jai Naveen
For Respondent(s) : Mr. AR Choudhary, PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 13/05/2022
1. At the outset, counsel for the appellant further submits that appellant no.1 Bheraram has expired and only appellants no.2 & 3 are surviving.
2. This criminal appeal has been preferred under Section 374 Cr.P.C. praying for the following reliefs:-
"It is, therefore, humbly prayed that in the facts and circumstances of the case the appeal may kindly be allowed and the accused appellants be ordered to be acquitted and discharged from the charges levelled against them and the conviction and sentence mentioned inter alia in the order dated 30th June, 1997 passed by the learned Additional Sessions Judge, Nagaur be set aside."
3. The matter pertains to an incident that occurred in the year 1995 and the present appeal has been pending since 1997.
4. Vide impugned judgment dated 30.06.1997 the learned Additional Sessions Judge, Nagaur in Sessions Case No.32/95 acquitted accused-appellant Chhataram for offence under Section 325/34 IPC and accused-appellants Manaram & Bheraram for the offence under Sections 326/34 & 324/34 IPC but convicted (Downloaded on 26/12/2022 at 04:11:40 AM) (2 of 7) [CRLA-316/1997] Chhataram for offence under Sections 307/34, 326, 324/34 & 323/34 IPC and accused Manaram & Bheraram for offence under Sections 307/34, 325/34 & 323/34 IPC.
Counsel for the appellant submits that the incident is of 19.09.1994 when complainant alleges that while he was grazing herd in Agore of pond, at that time, the accused persons armed with 'lathies' and 'kassies' attacked him. Counsel for the appellant has taken this court to the statement of Dr. OD Mathur (PW-6), in which, he has explained injuries and opined that injuries no.3, 4, 5 & 6 were of grievous nature. Counsel for the appellant submits that none of the injuries are on any vital part, thus, the intention to cause death is not available. Counsel for the appellant also submits that, though, the injuries are grievous but there was no knowledge or intention to cause death. Counsel for the appellant has also taken this Court to the evidence of eye-witness/injured/complainant i.e. PW-4 Haru Ram, in which, discrepancy regarding the number of injuries and the matter of attack is their. Attribution of weapon is doubtful.
Mr. G.R. Punia, Sr. Advocate, further submits that there is no other witness to the incident.
Counsel for the appellant submits that it is a fit case where offence under Sections 307 and 326 IPC are not made out and the conviction needs to be climbed down, however, he prays for benefit to be given under Section 4 of the probation of Offenders Act.
5. Learned counsel for the accused-appellant(s) submits that the accused-appellant(s) do not have any criminal antecedents to their credit.
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(3 of 7) [CRLA-316/1997] 6. Learned counsel for the accused-appellant(s) further
submits that the sentence awarded to accused-appellant(s) was suspended by this Hon'ble Court vide the order dated 02.07.1997, passed in S.B. Criminal Misc. Appln. (SOS) No.253/97 and, thus, they are on bail.
7. Learned counsel for the accused-appellant(s) however, makes a limited prayer that the accused-appellant(s) may be granted benefit under Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as 'the Act').
"4. Power of court to release certain offenders on probation of good conduct.--
(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.(Downloaded on 26/12/2022 at 04:11:40 AM)
(4 of 7) [CRLA-316/1997] (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3)...
(4)...
(5)... "
8. On the other hand, learned Public Prosecutor opposes the appeal and submits that looking to the overall facts and circumstances of the case and the well reasoned speaking order passed by the learned court below, the accused-appellant(s) are not entitled for any indulgence by this Court.
9. Heard learned counsel for the parties as well as perused the record of the case.
10. In Arvind Mohan Sinha Vs. Amulya Kumar Biswas (1974) 4 SCC, the Hon'ble Apex Court observed as under:-
"The Probation of Offenders Act is a reformative measure and its object is to reclaim amateur offenders who, if spared the indignity of incarceration, can be usefully rehabilitated in society.
In recalcitrant cases, punishment has to be deterrent so that others similarly minded may warn themselves of the hazards of taking to a career of crime. But the novice who strays into the path of crime ought, in the interest of society, be treated as being socially sick. Crimes are not always rooted in criminal tendencies and their origin may lie in psychological factors induced by hunger, want and poverty. The Probation of Offenders act recognises the importance of environmental influence in the commission of crimes and prescribes a remedy whereby the offender can be reformed and rehabilitated in society."(Downloaded on 26/12/2022 at 04:11:40 AM)
(5 of 7) [CRLA-316/1997] 10.1 In Brij Lal Vs. State of Rajasthan RLW 2022 Raj 945, a Coordinate Bench of this Court observed as under:-
"Under Section 4 of the Probation of Offenders Act nature of offence is one of the major-criteria for determining whether benefit of this provision should be given to the concerned offender or not. His age would be another relevant factor and the circumstance in which the offence was committed may be 3rd important consideration... "
10.2 In Mohd. Hashim Vs. State of U.P. & Ors., (2017) 2 SCC 198, while reiterating the ratio decidendi laid down in Dalbir Singh Vs. State of Haryana, (2000) 5 SCC 82, the Hon'ble Apex Court observed as under:
"... The Court has further opined that though the discretion as been vested in the court to decide when and how the court should form such opinion, yet the provision itself provides sufficient indication that releasing the convicted person on probation of good conduct must appear to the Court to be expedient..."
10.3 In Lakhvir Singh and Ors. Vs. The State of Punjab and Ors. (2021) 2 SCC 763 wherein the Hon'ble Apex Court of India, with regard to the application of the Probation of Offenders Act, 1958 vis-a-vis those Acts wherein a minimum sentence of imprisonment has been prescribed by the legislature, observed as under:-
"Even though, Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the PC Act') prescribes a minimum sentence of imprisonment for not less than 1 year, an exception was carved out keeping in mind the application of the Act. In Ishar Das (supra), this Court noted that if the object of the legislature was that the Act does not apply to all cases where a minimum sentence of imprisonment is prescribed, there was no reason to specifically provide an exception for Section 5(2) of the PC Act. The fact that Section 18 of the Act does not include any (Downloaded on 26/12/2022 at 04:11:40 AM) (6 of 7) [CRLA-316/1997] other such offences where a mandatory minimum sentence has been prescribed suggests that the Act may be invoked in such other offences. A more nuanced interpretation on this aspect was given in CCE v. Bahubali (1979) 2 SCC 279. It was opined that the Act may not apply in cases where a specific law enacted after 1958 prescribes a mandatory minimum sentence, and the law contains a non-obstante clause. Thus, the benefits of the Act did not apply in case of mandatory minimum sentences prescribed by special legislation enacted after the Act.5 It is in this context, it was observed in State of Madhya Pradesh v. Vikram Das (Supra) that the court cannot award a sentence less than the mandatory sentence prescribed by the statute. We are of the view that the corollary to the aforesaid legal decisions ends with a conclusion that the benefit of probation under the said Act is not excluded by the provisions of the mandatory minimum sentence Under Section 397 of Indian Penal Code, the offence in the present case. In fact, the observation made in Joginder Singh v. State of Punjab ILR (1981) P & H 1 are in the same context."
11. This Court observes that there is no material on record that the accused-appellant(s) have any criminal antecedents. Thus, the accused-appellant(s) are entitled to the benefit under the Probation of Offenders Act, 1958.
11.1 Thus, this Court, after taking into due consideration the legislative intent of the Act and the decisions rendered by the Hon'ble Apex Court in Arvind Mohan (supra), Mohd. Hashim (supra) and in Lakhvir Singh, and by this Hon'ble Court in Brij Lal (supra), deems it appropriate to extend the benefit of the Act to the accused-appellant(s).
12. This Court on conjointly seeing medical report (Exh.P/6) alongwith the statement of doctor PW-6 as well as the statement of complainant (PW-4) and the observation made by court below (Downloaded on 26/12/2022 at 04:11:40 AM) (7 of 7) [CRLA-316/1997] is of the opinion that since there is absolutely no injury on any vital part, though, injuries are on the non-vital parts are grievous in nature and none of the weapon has been recovered, deems it a fit case to partly allow the appeal.
This Court arrives at a considered conclusion that the conviction under Sections 307 IPC is not sustainable, consequently, benefit of Section 4 of Probation of Offenders Act is given for rest of the offences while maintaining the conviction.
13. Resultantly, the present appeal is partly allowed. While holding conviction of present accused-appellant Chhataram for offence under Sections 326, 324/34 & 323/34 IPC and accused Manaram & Bheraram for offence under Sections 325/34 & 323/34 IPC, this Court interferes with the sentence part of said judgment also and directs that each of the appellant(s) shall be released on probation under Section 4 of the Act, upon their furnishing a personal bond in the sum of Rs.50,000/- and two sureties in the sum of Rs.25,000/- each to the satisfaction of the learned trial court with a further undertaking that they shall maintain peace and good behaviour for a period of two years and shall not repeat the offence. The appellants are on bail. They need not surrender. Their bail bonds stand discharged accordingly.
All pending applications stand disposed of. Record of the learned court below be sent back forthwith.
(DR.PUSHPENDRA SINGH BHATI), J.
55-Sanjay/-
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